SB (Jamaica) and ABD (A Minor), R (On the Application Of) v Secretary of State for the Home Department

Under transitional provisions for discretionary leave, an applicant previously granted leave before the relevant rule change is normally considered under the former policy unless there has been a significant change in circumstances or the criminality thresholds apply. A change is significant when it bears on matters relevant to the original grant; it is not confined to a change that removes any right to remain.

Where an applicant qualifies for leave under the Immigration Rules, the Secretary of State may grant that leave subject to the applicable conditions. A challenge to a no-recourse-to-public-funds condition requires adequate, current evidence capable of showing that its removal is justified. The child-best-interests duty is not engaged merely because the parent receives limited leave, absent evidence of danger or risk to the child.

The appellant and her daughter sought judicial review of decisions dated 8 October 2013 and 8 October 2014. The Secretary of State granted the appellant 30 months’ leave to remain under paragraph 276ADE of the Immigration Rules, subject to a no-recourse-to-public-funds condition.

The appellant had previously been granted three years’ discretionary leave in 2010 as her father’s dependant, under the pre-July 2012 approach to Article 8 claims. She argued that the transitional policy required a further grant of discretionary leave, that the Secretary of State had failed to comply with the duty under section 55 of the Borders, Citizenship and Immigration Act 2009, and that the financial evidence did not justify the condition. The Upper Tribunal dismissed the judicial review claim. The central issues on appeal were the meaning of significant change, the application of section 55, and the rationality of the condition.

1. Appeal dismissed. The Upper Tribunal had reached the correct decision.
2. The transitional provisions applied to a person granted discretionary leave before 9 July 2012 unless there had been significant changes or the criminality thresholds applied. A change is significant if it bears on matters relevant to the original grant of leave. It is not limited to a change resulting in the loss of any right to remain.
3. The appellant’s circumstances had materially changed. She had ceased to be a child dependant living with her father, had become a parent, was living independently and was working. In addition, her application fell within express Immigration Rules provisions, and she had applied under paragraph 276ADE. The Secretary of State was entitled to grant leave under the Rules rather than further discretionary leave.
4. The Secretary of State adequately addressed the child’s interests under section 55 of the Borders, Citizenship and Immigration Act 2009. The appellant and her child were permitted to remain, the appellant could work, and the material did not show that the child was in danger or at risk. There was no sufficient basis for concluding that the grant of limited leave, rather than discretionary leave, prejudiced the child’s interests.
5. The no-recourse-to-public-funds condition was not irrational. Limited leave normally carried that condition, and the evidence relied on was inadequate and materially out of date. It did not provide a sufficient account of income, savings, assets, rent, bills and other substantial outgoings. The Secretary of State was rationally entitled to conclude that the evidence did not justify removing the condition.
6. The later request to remove the condition, supported by new evidence, was outside the proceedings and did not affect the appeal.

• Court of Appeal (Civil Division): appeal dismissed. The court upheld the Upper Tribunal’s dismissal of the judicial review challenge to the Secretary of State’s decisions.
• Upper Tribunal (Immigration and Asylum Chamber): judicial review application dismissed. The decisions granting 30 months’ leave under paragraph 276ADE subject to a no-recourse-to-public-funds condition were upheld.